Chandigarh

StateCommission

CC/188/2018

Rajender Kaur - Complainant(s)

Versus

Ansal Properties & Infrastructure Ltd. - Opp.Party(s)

Puneet Singh, Adv.

08 Feb 2019

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	188 of 2018
Date of Institution	:	01.05.2018
Date of Decision	:	08.02.2019

 

1. Rajender Kaur wife of Preet Singh Vij,
2. Preet Singh Vij son of Kuldeep Singh Vij

Both residents of 5B/24, Tilak Nagar, New Delhi.

…… Complainants

V e r s u s

1. Ansal Properties and Infrastructure Ltd., through its Authorized Signatory/Managing Director.

Corporate Office Address:-

S.C.O. No.183-184, Sector 9-D, Madhya Marg, Chandigarh-160009.

Second Address:-

115, Ansal Bhawan, 16-Kasturba Gandhi Marg, New Delhi-110001.

2. Housing Development Finance Corporation Limited, through its Chairman/Managing Director/Authorized Signatory; Branch Office:- HDFC Limited, SCO 153-155, Sector 8-C, Madhya Marg, Chandigarh.

…..Opposite parties

Argued by:-     Sh.I.P.S Mangat, Advocate proxy for Sh.Ish Puneet Singh, Advocate for the complainants.

                       Sh.Sandeep Kumar, Advocate for opposite party no.1.

                       Ms.Anjali Moudgil, Advocate for opposite party no.2.

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Complaint case No.	:	61 of 2018
Date of Institution	:	09.02.2018
Date of Decision	:	08.02.2019

 

1. Mrs.Annuradha Parmar wife of Col.Rajeshwar Parmar, permanent resident of House No.MIG 38, Housing Board Colony, Chilgari, Dharamshala, Distt.-Kangra (HP) presently residing at C-210, Haryana Officers Cooperative Group Housing Society Ltd. (Regd), Shikhar Apartments, GH-2, Sector-5 MDC, Panchkula.
2. Col.Rajeshwar Parmar, SM, VSM, resident of House No.MIG 38, Housing Board Colony, Chilgari, Dharamshala, Distt.-Kangra (HP) presently c/o 56 APO.

…… Complainants

V e r s u s

1. M/s Ansal Properties and Infrastructure Ltd., 1202-1204, Twelfth Floor, Antriksh Bhawan, 22, Kasturba Gandhi Marg, New Delhi-110001.
2. M/s Ansal Properties and Infrastructure Ltd., Corp. Office: S.C.O. 183-184, Sector 9-C, Madhya Marg, Chandigarh (UT).
3. Housing Development Finance Corporation Limited, SCO 153-155, Sector 8-C, Madhya Marg, Chandigarh (U T).

…..Opposite parties

Argued by:-     Sh.S.S. Pathania, Advocate for the complainants.

                       Sh.Sandeep Kumar, Advocate for opposite parties no.1 and 2.

                       Ms.Anjali Moudgil, Advocate proxy for Ms.Rupali Shekhar Verma, Advocate for opposite party no.3.

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Complaint case No.	:	62 of 2018
Date of Institution	:	09.02.2018
Date of Decision	:	08.02.2019

 

1. Sh.Birender Singh Rana son of Late Lt. Col. Multan Singh Rana, permanent resident of House No.MIG 38, Housing Board Colony, Chilgari, Dharamshala, District Kangra (HP), presently residing at House No.979, Sector 17, Panchkula.
2. Mrs. Sumita Rana wife of Sh.Birender Singh Rana, permanent resident of House No.MIG 38, Housing Board Colony, Chilgari, Dharamshala, District Kangra (HP), presently residing at House No.979, Sector 17, Panchkula.

…… Complainants

V e r s u s

1. M/s Ansal Properties and Infrastructure Ltd., 1202-1204, Twelfth Floor, Antriksh Bhawan, 22, Kasturba Gandhi Marg, New Delhi-110001.
2. M/s Ansal Properties and Infrastructure Ltd., Corp. Office: S.C.O. 183-184, Sector 9-C, Madhya Marg, Chandigarh (UT).
3. Housing Development Finance Corporation Limited, SCO 153-155, Sector 8-C, Madhya Marg, Chandigarh ( U T).

…..Opposite parties

Argued by:-     Sh.S.S. Pathania, Advocate for the complainants.

                       Sh.Sandeep Kumar, Advocate for opposite parties no.1 and 2.

                       Ms.Anjali Moudgil, Advocate for opposite party no.3.

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Complaint case No.	:	94 of 2018
Date of Institution	:	28.02.2018
Date of Decision	:	08.02.2019

 

1. Ms. Sushma Rani w/o Vias Dev, R/o H.No.T6-03, RSD Colony, Shahpur Kandli Township, Distt. Pathankot.
2. Vias Dev S/o Sh.Rasal Chand, Age 58 years, R/o H.No.T6-03, RSD Colony, Shahpur Kandli Township, Distt. Pathankot.

…… Complainants

V e r s u s

1. Ansal Properties and Infrastructure Ltd., through its Authorized Signatory/Managing Director.

Corporate Office Address:-

S.C.O. No.183-184, Sector 9-D, Madhya Marg, Chandigarh-160009.

Second Address:-

115, Ansal Bhawan, 16-Kasturba Gandhi Marg, New Delhi-110001.

2. HDFC Bank through its Managing Director; SCO 153-154-155, Sector 8-C, Madhya Marg, Chandigarh-160008.

…..Opposite parties

Argued by:-     Sh. N.S. Jagdeva, Advocate for the complainants.

                       Sh.Sandeep Kumar, Advocate for opposite party no.1.

                       Ms.Anjali Moudgil, Advocate for opposite party no.2.

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Complaint case No.	:	120 of 2018
Date of Institution	:	20.03.2018
Date of Decision	:	08.02.2019

 

1. Kulwinder Kaur wife of Sh.Devinder Singh, resident of VPO Sohana, Gurudwara Akal Ashram, District SAS Nagar, Mohali.
2. Charanpreet Singh son of Sh.Devinder Singh, resident of VPO Sohana, Gurudwara Akal Ashram, District SAS Nagar, Mohali.

 

…… Complainants

V e r s u s

1. Ansal Properties and Infrastructure Ltd., 1202-1204, Antriksh Bhawan, 22, Kasturba Gandhi Marg, New Delhi-110001, through its MD.
2. Ansal Properties and Infrastructure Ltd., S.C.O. No.183-184, Sector 9-C, Madhya Marg, Chandigarh, through its Sr. Executive (Sales & Marketing)/ Branch Manager/Authorized Signatory.

…..Opposite parties

Argued by:-     Sh.Subhash Chand, Advocate for the complainants.

                       Sh.Sandeep Kumar, Advocate for opposite parties.

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Complaint case No.	:	159 of 2018
Date of Institution	:	13.04.2018
Date of Decision	:	08.02.2019

 

Prabhjot Sethi S/o Sh.Bhupinder Singh, R/o # 4/1392, New Civil Lines, Akalsar Road, Moga (Punjab).

…… Complainant

V e r s u s

1. Ansal Properties and Infrastructure Ltd., S.C.O. 183-184, Sector 9-C, Madhya Marg, Chandigarh, through its President.

Alternate Address:- 115, Ansal Bhawan, 16-K.G. Marg, New Delhi.

2. Housing Development Finance Corporation Limited, SCO 153-155, Sector 8-C, Madhya Marg, Chandigarh.

Alternate Address:-  Raman House, 169, Backbay Reclamation, Mumbai-400020.

…..Opposite parties

Argued by:-     Sh.Rohit Mittal, Advocate for the complainant.

                       Sh.Sandeep Kumar, Advocate for opposite party no.1.

                       Ms.Anjali Moudgil, Advocate proxy for Ms.Rupali Shekhar Verma, Advocate for opposite party no.2.

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Complaint case No.	:	244 of 2018
Date of Institution	:	29.05.2018
Date of Decision	:	08.02.2019

 

Mr.Amit Sardana son of Sh.Bhagwan Dass Sardana, resident of House No.14, RPS Colony, Opposite Khanpur Depot, New Delhi.

…… Complainant

 

V e r s u s

1. The Managing Director, M/s Ansal Properties and Infrastructure Ltd., 115, Ansal Bhawan, 16, Kasturba Gandhi Marg, New Delhi.
2. M/s Ansal Properties and Infrastructure Ltd., 115, Ansal Bhawan, 16, Kasturba Gandhi Marg, New Delhi.

2^nd  Address:-

M/s Ansal Properties and Infrastructure Ltd., S.C.O. 183-184, Sector 9-C, Madhya Marg, Chandigarh.

3. M/s Housing Development Finance Corporation Limited (HDFC Ltd.), through its Authorized Signatory/Managing Directors, having branch office at SCO 153-155, Sector 8-C, Madhya Marg, Chandigarh.

…..Opposite parties

Argued by:-     Sh.Inderpal Singh Bhinder, Advocate for the complainant.

                       Sh.Sandeep Kumar, Advocate for opposite parties no.1 and 2.

                       Ms.Anjali Moudgil, Advocate for opposite party no.3.

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Complaint case No.	:	295 of 2018
Date of Institution	:	18.07.2018
Date of Decision	:	08.02.2019

 

1. Pushpa Devi W/o Sh.Balwinder Pal Sharma, House No.1736, Street No.2, Shakti Nagar, Barnala-148101.
2. Balwinder Pal Sharma S/o Sh. Megh Raj, House No.1736, Street No.2, Shakti Nagar, Barnala-148101.

…… Complainants

V e r s u s

1. Ansal Properties and Infrastructure Ltd., S.C.O. 183-184, Sector 9-C, Madhya Marg, Chandigarh, through its President.

Alternate Address:- 115, Ansal Bhawan, 16-K.G. Marg, New Delhi.

2. Housing Development Finance Corporation Limited, SCO 153-155, Sector 8-C, Madhya Marg, Chandigarh.

Alternate Address:-  Raman House, 169, Backbay Reclamation, Mumbai-400020.

…..Opposite parties

Argued by:-     Sh.Rohit Mittal, Advocate for the complainants.

                       Sh.Sandeep Kumar, Advocate for opposite party no.1.

                       Ms.Anjali Moudgil, Advocate proxy for Ms.Rupali Shekhar Verma, Advocate for opposite party no.2.

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Complaints under Section 17 of the Consumer Protection Act, 1986

 

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                        MRS. PADMA PANDEY, MEMBER.

                        MR.RAJESH K ARYA, MEMBER.

 

PER PADMA PANDEY, MEMBER

                By this order, we propose to dispose of aforesaid eight consumer complaints, filed by the respective complainants. Arguments in the said complaints were heard in common, on 10.01.2019. In all the complaints, referred to above, issues involved, except minor variations, here and there, of law and facts are the same. As such, during arguments, it was agreed by the contesting parties, that all the eight complaints can be disposed of, by passing a consolidated order.

2.         To dictate order, facts are being taken from Consumer Complaint bearing No.188 of 2018 titled as Rajender Kaur and another Vs Ansal Properties and Infrastructure Limited and another. This complaint has been filed by the complainants, seeking refund of entire amount paid i.e. Rs.45,86,296/- (which amount is not disputed by the opposite parties), paid by them to  opposite party no.1, towards purchase of flat bearing no.0164-0-277SF, measuring 1435 square feet, for basic sale price of Rs.45,20,000/-, plus external development charges, preferential location charges etc.,  in a project launched by  opposite party no.1, under the name and style ‘Victoria Floors”, Golf Links-II, Sector 116, SAS Nagar, Mohali, Punjab (in short the unit), as possession thereof was not delivered to them, by the committed date i.e. 29.09.2015 [total 36 months (30 months plus (+) 6 months extended period) from the date of execution of the Agreement i.e. from 30.09.2012], or even by the date of filing this complaint. It was stated that the said unit was purchased by the complainants, for their personal use. For making payment towards price of the said unit, the complainants had availed loan of Rs.36,16,000/- from opposite party no.2, out of which, an amount of Rs.33,90,000/- stood disbursed by it, to opposite party no.1. Remaining amount has been paid by the complainants from their own pocket. Neither delayed compensation for the period of delay in handing over possession of the unit, was paid by opposite party no.1 nor possession thereof has been offered for want of construction and development at the project site. It was stated that by not offering and delivering possession of the unit, in question, by the stipulated date or even thereafter, opposite party no.1 was deficient in providing service to the complainants and also adopted unfair trade practice. It was further stated that except bald commitments made by opposite party no.1, nothing came out, as far as delivery of possession of the unit, in question, is concerned. Even necessary approvals/sanctions to launch and sell the project was not obtained by opposite party no.1, from the competent Authorities. Legal notice served upon opposite party no.1 on 27.02.2018 Annexure C-8 did not yield any result. Request made to opposite party no.1, to refund the amount paid was refused by it. Feeling aggrieved, the instant complaint has been filed by the complainants, seeking refund of the entire amount paid, alongwith interest, compensation etc.
3.         Upon notice, reply was filed by opposite party no.1, wherein, allotment of the unit, in question, in favour of the complainants; payment made by them as stated in the complaint; and execution of the agreement dated 30.09.2012 was not disputed. However, it was stated that the unit, in question, was purchased for future gain, as such, the complainants being investors, would not fall within the definition of consumer, as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986. It was further stated that the period of 30 months plus 6 months, for delivering possession of the unit, was tentative. It was pleaded that since the said period was to run from the date of receiving requisite approvals/sanctions from the Competent Authorities, as such, time was not the essence of contract. As per Tripartite Agreement executed between the parties, opposite party no.1 was liable to make payment towards Pre-EMI interest to opposite party no.2, for a period of 24 months only, from the date of execution thereof. The remaining averments were denied, being wrong. It was prayed that the complaint having no substance, be dismissed.
4.         Opposite party no.2 in its written version pleaded that it has no concern, whatsoever, with the allegations levelled by the complainants against opposite party no.1, in respect of possession of the unit, in question. Loan amount was released in favour of opposite party no.1, in lieu of Loan Agreement and Tripartite Agreement, executed between the parties. Loan account of the complainants was irregular and still an amount of Rs.34,87,866/- stood pending to be paid to opposite party no.2.  In case, this Commission orders refund of the amount paid, opposite party no.2 will have first charge/right to seek apportionment of its dues. Request was made to dismiss the complaint against opposite party no.2.  
5.         In the rejoinder filed, the complainants reiterated all the averments contained in the complaint and repudiated those, contained in written version of  opposite party no.1.
6.         The parties led evidence, in support of their cases.
7.         We have heard the contesting parties and have gone through the evidence and record of the cases, very carefully.
8.         The first question, that falls for consideration, is, as to whether, the complainants are speculators, and that they had purchased the unit, in question, for earning profits i.e. for resale, as and when there is escalation in the prices of real estate, therefore, they would not fall within the definition of consumer, as defined by Section 2 (1) (d) of the Act., as alleged by  opposite party no.1. It may be stated here that there is nothing, on record to show that the complainants are property dealers and are indulged in sale and purchase of property, on regular basis. In their complaint, which is duly supported by joint affidavit, it has been specifically stated by the complainants that the unit, in question was purchased by them, for their personal use. Thus, in the absence of any cogent evidence, in support of the objection raised by  opposite party no.1 mere bald assertion to that effect, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, decided by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  2016 (2) CPJ 316. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case.
9.         It is not in dispute that the complainants purchased the unit, in question, in the project of  opposite party no.1, for basic sale price of Rs.45,20,000/- plus external development charges etc. Admittedly, promise was made to hand over possession of the built-up unit, within a total period of 36 months (30 months plus 6 months extended period) from the date of execution of the agreement dated 30.09.2012. End date to hand over possession stood expired on 29.09.2015. However, nothing was done. Even in the written reply also no firm commitment to hand over possession of the unit in near future was made by  opposite party no.1. Not even a single word has been mentioned in the reply, as to why there is such a huge delay, on the part of opposite party no.1, in offering and delivering possession of the unit, to the complainants, which was purchased by them, as far as back in 2012. It is well settled law that the onus to prove that construction of the units had been completed and the area/site, in question, is fully developed, is on the builder. It was also so said by the National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. Thus, in case, all the development activities, had been undertaken, and construction of units, is complete at the site, then it was for  opposite party no.1, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all the construction and development activities, had been undertaken and completed at the site or not, but it failed to do so. At the time of arguments, when asked for, Counsel for opposite party no.1 failed to give any positive date/time, as to when, construction will be completed and possession of the constructed unit will be given to the complainants. Above facts clearly go to show that  opposite party no.1 was not serious in completing the construction and handing over possession of the built-up unit to the complainants. In view of above, it can safely be said that there was deficiency in providing service on the part of  opposite party no.1 and further by making false promise and not delivering possession of the unit, after receipt of huge amount, it also indulged into unfair trade practice.

                Despite receipt of huge amount, referred to above, opposite party no.1 has failed to complete construction of the unit, in question, and hand over possession thereof to the complainants. The date of offer of possession of the unit already stood expired, as far as back in September 2015. Now it is February, 2019. Still the complainants are empty handed. They cannot be made to wait for an indefinite period, at the whims and fancies of  opposite party no.1. It is settled law that when there is a material violation on the part of the builder, in not handing over possession by the stipulated date, the purchaser is not bound to accept the offer, even if the same is made at a belated stage and on the other hand, can seek refund of amount paid. It was so said by the Hon’ble National Commission, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, wherein, under similar circumstances, while negating the plea taken by the builder, it was held  as under:-

“I am in agreement with the learned senior counsel for the complainants that considering the default on the part of opposite parties no.1 and 2 in performing its contractual obligation, the complainants cannot be compelled to accept the offer of possession at this belated stage and therefore, is entitled to refund the entire amount paid by him along with reasonable compensation, in the form of interest.”

 

Not only as above, in a case titled as Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, wherein possession was offered after a long delay, this Commission, while relying upon the judgments rendered by the Hon’ble National Commission, ordered refund to the complainants, while holding as under:-

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same.

 

Furthermore, in another case titled as M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the Hon’ble National Commission, under similar circumstances, held as under:-

“I am of the prima facie view that even if the said offer was genuine, yet, the complainants was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

 

The above view taken by the National Commission, has been reiterated by it, in the case titled as Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No. 1814 of 2017 decided on 05.07.2018. Relevant part of the said order reads thus:-

“This Commission in Emaar MGF Land Ltd. & Anr. V. Amit Puri (First Appeal No.250 of 2014), decided on 30.03.2015, has held that if the Developer fails to deliver possession of the allotted plot/flat within the stipulated time, the allottee is under no obligation to accept an alternative plot. At the cost of repetition, we may reiterate that in the event of Developer failing to deliver possession of the property within the stipulated period, for any reason, save and except a force majeure condition, agreed to between the contracting parties, an allottee cannot be compelled to accept an alternate site/plot and he would be within his rights to seek refund of the amount deposited with the Developer against allotment”.

                In the present case, there is nothing on record to show that opposite party no.1 suffered any force majeure circumstances, on account of which, construction could not be completed. In the absence of any force majeure circumstances having been actually faced by  opposite party no.1, it was bound to deliver possession of the unit, by 29.09.2015, as such, time was, unequivocally made the essence of contract.  Opposite party no.1 also cannot evade its liability, merely by saying that since the words “shall endeavor” was mentioned in the Agreement, for delivery of possession of the unit, as such, time is not to be considered as essence of the contract. The act of non-mentioning of exact date in the allotment letter/Agreement is violation of CHAPTER II Regulation of Promotion of Construction, Sale, Transfer and Management of Apartments, Plots and Properties, Condition no. 3(2) (g) of the Punjab Apartment and Property Regulation Act, 1995 (PAPRA), which says that the project proponent is duty bound to specify, in writing, the date by which possession of the unit is to be handed over and it shall hand over such possession accordingly. Relevant contents of condition no.3(2) (g) of PAPRA are reproduced below:-

“(g) specify, in writing, the date by which possession of the plot or apartment is to be handed over and he shall hand over such possession accordingly”;

Furthermore, non-mentioning of exact date of delivery of possession of the unit(s) in the Buyer’s Agreement/allotment letter, is an unfair trade practice on the part of the Builder. The builder is bound to mention the exact/specific date of delivery of possession of the plots/unit(s) to the allottees/purchasers thereof.  It was so said by the Hon`ble National Commission, in Rajeev Nohwar & Anr. V/S Sahajanand Hi Tech Construction Pvt Ltd, 2016 (2) CPR 769. Relevant portion of the said case reads thus:-

“Merely making possession by a particular date will also not meet the requirement of law and the promotor is under a legal mandate to stipulate a specific date for delivery of possession of the flat in the agreement which he executes with the flat buyer”.

In view of above, the plea of  opposite party no.1, in this regard, also stands rejected.

10.         In view of findings given above by this Commission, to the effect that in case, even if genuine offer of possession is made to an allottee yet, after a huge delay, it is not obligatory upon him/her to accept the same and on the other hand can seek refund of the amount deposited, as such, reliance placed by the Company/Ansal Properties and Infrastructure Limited, on occupation certificate dated 08.03.2018 Annexure OP-1/1, in connected consumer complaint bearing No.61 of 2018, is of no use to it. In this case, possession of the unit, in question, was to be offered and delivered latest by October 2013 i.e. within a reasonable period of three years, from the date of allotment/booking of the unit, being 20.10.2010. However, since occupation certificate, referred to above, has been received and placed on record, during pendency of this complaint by the Company, i.e. after a huge delay, as such, this Commission is not inclined to pass any perverse order, against the complainants therein, in view of principle of law, referred to above.   
11.         Furthermore, from the contents of reply filed by opposite party no.1 itself to the effect that possession of constructed unit was to be delivered within a period of 36 months, which period was to run, when all necessary approvals and sanctions have been obtained from the Competent Authorities, it is proved that the project in question was launched and sold to the buyers including the complainants, without having necessary sanctions in its hands. At the time of arguments also, it is not controverted by Counsel for opposite party no.1 that when the unit, in question, was sold, all necessary sanctions were not available with opposite party no.1, to launch the project. A builder is bound to take all necessary approvals/clearances from the Competent Authorities before launching and selling the project, and if it fails to do so, it amounts to an unfair trade practice, on its part. Collecting money from the perspective buyers without obtaining the required permissions and sanctions is an unfair trade practice on the part of the project proponent. It is well settled law that it is duty of the builder to first obtain the requisite permissions and sanctions and only thereafter collect the consideration money from the purchasers. It was also so said by the National Commission, in a case titled as M/s Ittina Properties Pvt. Ltd. & 3 Ors. Vs. Vidya Raghupathi & Anr., First Appeal No. 1787 of 2016, decided on 31 May 2018. Relevant part of the said order reads thus:-

“…………….This Commission in Brig. (Retd.) Kamal Sood Vs. M/s. DLF Universal Ltd., (2007) SCC Online NCDRC 28, has observed that it is unfair trade practice on the part of the Builder to collect money from the perspective buyers without obtaining the required permission and that it is duty of the Builder to first obtain the requisite permissions and sanctions and only thereafter collect the consideration money from the purchasers.

It is an admitted fact that the sale deeds were executed in the year 2006 and by 2009 the completion certificate was not issued. The Occupancy Certificate was issued only on 25.09.2017 during the pendency of these Appeals before this Commission. Allotting Plots or Apartments before procuring the relevant sanctions and approvals is per se deficiency…………”

 

                The principle of law, laid down in the aforesaid case, is fully applicable to the present case. In view of above, it can safely be said that by adopting unfair trade practice, the project was sold/launched by opposite party no.1. The complainants, are, thus held entitled to refund of the amount paid to opposite party no.1 towards price of the said unit.

12.         It is to be further seen, as to whether, interest on the amount refunded, can be granted in favour of the complainants. It is not in dispute that huge amount equal to more than about 90% was paid by the complainants, without getting anything, in lieu thereof. The said amount has been used by  opposite party no.1, for its own benefit. There is no dispute that for making delayed payments beyond period of three months,  opposite party no.1 was charging heavy rate of interest @21% compounded quarterly, as per Clause 4.5 of the agreement, for the period of delay in making payment of instalments.  It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon`ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd., (2014) 6 SCC 335. In view of above, the complainants are certainly entitled to get refund of the amount deposited by them, alongwith interest @12% p.a., from the actual dates of deposits (less than the rate of interest charged by opposite party no.1, in case of delayed payment, as per Clause 4.5 aforesaid), till realization. However, it is made clear that, in case, in any of the consumer complaints, referred to above, the unit, in question, was purchased in resale, interest shall be payable from the date of endorsement/transfer of the said unit, on the entire amount paid to  opposite party no.1.   

                In view of above facts of the case,  opposite party no.1 is also under an obligation to compensate the complainant(s), for inflicting mental agony and causing physical harassment to them, as also escalation in prices.

13.         At the time of arguments, it was vehemently contended by Counsel for opposite party no.1 that despite the fact that liability of making payment of Pre-EMI to the Bank concerned, on the part of opposite party no.1,  was fixed for a specific period contained in the Tripartite Agreement, but since the construction and development of the project was going to be delayed, as such, it further committed to pay the same till offer of possession of the unit(s) is made, as such, under these circumstances, no loss is caused to the complainants. This stand is also found mentioned in written version filed by the Company, in some of the connected cases. It may be stated here that the complainants cannot be made to wait for an indefinite period, at the whims and fancies of opposite party no.1/Company. If opposite party no.1 had committed the complainants to pay Pre-EMI to opposite party no.2, beyond the period mentioned in the Tripartite Agreement, on account of its own fault, in not completing the construction and development within the stipulated period and that too after receiving substantial amount from them, and also by way of getting the loan amount released, then it cannot be made a tool to say that the Company has got blanket immunity and can delay the project for an indefinite period. The interpretation as put forth by Counsel for opposite party no.1, if accepted, it shall defeat the entire object of the Act, which is meant to protect and promote the rights of the consumer(s). It is therefore held that if opposite party no.1/Company itself has extended its obligation of making payment of Pre-EMI to opposite party no.2/Bank concerned, beyond the period mentioned in the Tripartite Agreement, it cannot take any benefit out of that, to defeat genuine claim of the complainant(s).
14.         As far as objection taken in connected consumer complaints bearing no.120 of 2018, 244 of 2018 and 295 of 2018, to the effect that these complaints are barred by limitation, it may be stated here that since it is an admitted fact, in all the complaints referred to above, possession has not been offered to the complainant(s) (except in consumer complaint bearing no.120 of 2018 and that too  also after inordinate delay, as such not binding upon the complainants therein, as explained above), as such, there was a continuing cause of action in favour of the complainant(s), in view of principle of law down, in  Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal   Shah  and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC),  wherein it was held that when possession of the residential units is not offered, there is a continuing cause of action, in favour of the allottee/buyer.

                Furthermore, since the Company is still utilizing the amount paid by the complainant(s), and has not refunded the same, as such, in that event also, there is a continuing cause of action in their favour, in view of law laid down by the National Commission in KNK Promoters & Developers Versus S.N. Padmini, Revision Petition No. 340 of 2011, decided on 31 Aug 2016 and Saroj Kharbanda Versus Bigjo's Estates Limited, First Appeal No. 986 of 2016, decided on 01 Feb 2018, in which it was held that the builder/opposite party cannot withhold the amount deposited by the allottee and if it is so, there is a continuing cause of action in favour of the allottee, to file a complaint seeking refund of the said amount. Relevant part is reproduced hereunder: -

“On the other hand, the OP builder has also not been able to explain as to why they were keeping and enjoying the money deposited by the complainant all these years. They could have cancelled the allotment made in favour of the complainant and made attempts to return the money deposited in terms of the agreement/understanding between the parties, but they did not do so. Since, the part amount deposited by the complainant has been lying with the OP for all these years, it would not be justified to conclude that the complaint is barred by limitation. This is, therefore a case of continuing cause of action, because the OP builder had no right to forfeit the money deposited by the complainant.”

 Under these circumstances, it is held that all the complaints are not at all barred by limitation. Even otherwise, on the one hand the Company is saying that these complaints are barred by time, whereas, in the same breath, it is saying that since time was not the essence of contract, as such, it is entitled for extension of time. In the same breath, both objections taken which are contrary to each other, taken by the Company, cannot be taken into consideration and is accordingly rejected.  

15.         No other point, was urged, by the contesting parties.
16.         For the reasons recorded above, all the eight complaints are partly accepted, with costs, in the following manner:-

In Consumer complaint bearing No.188 of 2018, opposite party no.1 is directed as under: -

1. To refund the entire amount, actually paid by the complainants from their own sources/pocket, at the time of booking and thereafter also, towards part price of unit, alongwith interest @12% p.a., from the respective  dates  of  deposits onwards.
2. To refund the amount to the complainants, if any pending, which had been paid by them to opposite party no.2, towards equal monthly installments, if any, on the loan amount, as it was the liability of opposite party no.1 only, under subvention scheme, as explained above. 
3. To repay the entire loan amount to opposite party no.2, released by it, in favour of opposite party no.1, in respect of the unit, in question, alongwith pre-EMI installments, if any due, till date. It is also made clear that till the time, the entire loan amount is not repaid to opposite party no.2, opposite party no.1 shall be bound to pay the equal monthly installments/Pre-EMI interest to opposite party no.2, till realization.
4. To pay compensation, in the sum of Rs.75,000/- for causing mental agony and physical harassment, to the complainants, as also escalation in prices.
5. To pay cost of litigation, to the tune of Rs.22,000/- to the complainants.
6. The payment of awarded amounts mentioned at sr.nos.(i), [(ii) (if any)], (iv) and (v) shall be made by opposite party no.1 to the complainants, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) and [(ii) (if any)] thereafter shall carry penal interest @14% p.a., instead of @12%, from the date of default and interest @12 % p.a., on the amounts mentioned at sr.nos. (iv) and (v), from the date of filing of this complaint, till realization, besides compliance of other directions given.
7. Complaint against opposite party no.2 is dismissed with no order as to costs, subject to directions aforesaid.

In Consumer complaint bearing No.61 of 2018, opposite parties no.1 and 2, jointly and severally are directed as under:

1. To refund the entire amount, actually paid by the complainants from their own sources/pocket, at the time of booking and thereafter also, towards part price of unit, alongwith interest @12% p.a., from the respective dates  of  deposits onwards.
2. To refund the amount to the complainants, if any pending, which had been paid by them to opposite party no.3, towards equal monthly installments, if any, on the loan amount, as it was the liability of parties no.1 and 2 only, under subvention scheme, as explained above. 
3. To repay the entire loan amount to opposite party no.3, released by it, in favour of opposite parties no.1 and 2, in respect of the unit, in question, alongwith pre-EMI installments, if any due, till date. It is also made clear that till the time, the entire loan amount is not repaid to opposite party no.3, opposite parties no.1 and 2 shall be bound to pay the equal monthly installments/Pre-EMI interest to opposite party no.3, till realization.
4. To pay compensation, in the sum of Rs.75,000/- for causing mental agony and physical harassment, to the complainants, as also escalation in prices.
5. To pay cost of litigation, to the tune of Rs.22,000/- to the complainants.
6. The payment of awarded amounts mentioned at sr.nos.(i), [(ii) (if any)], (iv) and (v) shall be made by opposite parties no.1 and 2 to the complainants, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) and [(ii) (if any)] thereafter shall carry penal interest @14% p.a., instead of @12%, from the date of default and interest @12 % p.a., on the amounts mentioned at sr.nos. (iv) and (v), from the date of filing of this complaint, till realization, besides compliance of other directions given.
7. Complaint against opposite party no.3 is dismissed with no order as to costs, subject to directions aforesaid.

In Consumer complaint bearing No.62 of 2018, opposite parties no.1 and 2, jointly and severally are directed as under: -

1. To refund the entire amount, actually paid by the complainants from their own sources/pocket, at the time of booking and thereafter also, towards part price of unit, alongwith interest @12% p.a., from the respective dates of deposits onwards.
2. To refund the amount to the complainants, if any pending, which had been paid by them to opposite party no.3, towards equal monthly installments, if any, on the loan amount, as it was the liability of parties no.1 and 2 only, under subvention scheme, as explained above. 
3. To repay the entire loan amount to opposite party no.3, released by it, in favour of opposite parties no.1 and 2, in respect of the unit, in question, alongwith pre-EMI installments, if any due, till date. It is also made clear that till the time, the entire loan amount is not repaid to opposite party no.3, opposite parties no.1 and 2 shall be bound to pay the equal monthly installments/Pre-EMI interest to opposite party no.3, till realization.
4. To pay compensation, in the sum of Rs.75,000/- for causing mental agony and physical harassment, to the complainants, as also escalation in prices.
5. To pay cost of litigation, to the tune of Rs.22,000/- to the complainants.
6. The payment of awarded amounts mentioned at sr.nos.(i), [(ii) (if any)], (iv) and (v) shall be made by opposite parties no.1 and 2 to the complainants, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) and [(ii) (if any)] thereafter shall carry penal interest @14% p.a., instead of @12%, from the date of default and interest @12 % p.a., on the amounts mentioned at sr.nos. (iv) and (v), from the date of filing of this complaint, till realization, besides compliance of other directions given.
7. Complaint against opposite party no.3 is dismissed with no order as to costs, subject to directions aforesaid.

In Consumer complaint bearing No.94 of 2018, opposite party no.1 is directed as under: -

1. To refund the entire amount, actually paid by the complainants from their own sources/pocket, at the time of booking and thereafter also, towards part price of unit, alongwith interest @12% p.a., from the respective  dates  of  deposits onwards.
2. To refund the amount to the complainants, if any pending, which had been paid by them to opposite party no.2, towards equal monthly installments, if any, on the loan amount, as it was the liability of opposite party no.1 only, under subvention scheme, as explained above. 
3. To repay the entire loan amount to opposite party no.2, released by it, in favour of opposite party no.1, in respect of the unit, in question, alongwith pre-EMI installments, if any due, till date. It is also made clear that till the time, the entire loan amount is not repaid to opposite party no.2, opposite party no.1 shall be bound to pay the equal monthly installments/Pre-EMI interest to opposite party no.2, till realization.
4. To pay compensation, in the sum of Rs.75,000/- for causing mental agony and physical harassment, to the complainants, as also escalation in prices.
5. To pay cost of litigation, to the tune of Rs.22,000/- to the complainants.
6. The payment of awarded amounts mentioned at sr.nos.(i), [(ii) (if any)], (iv) and (v) shall be made by opposite party no.1 to the complainants, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) and [(ii) (if any)] thereafter shall carry penal interest @14% p.a., instead of @12%, from the date of default and interest @12 % p.a., on the amounts mentioned at sr.nos. (iv) and (v), from the date of filing of this complaint, till realization, besides compliance of other directions given.
7. Complaint against opposite party no.2 is dismissed with no order as to costs, subject to directions aforesaid.

In Consumer complaint bearing No.120 of 2018, opposite parties no.1 and 2, jointly and severally are directed as under: -

1. To refund the amount of Rs.36,79,068/- to the complainants, alongwith interest @12% p.a., from the respective dates of deposits onwards.
2. To pay compensation, in the sum of Rs.1.50 lacs, for causing mental agony and physical harassment, to the complainants, as also deficiency in providing service and adoption of unfair trade practice.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the complainant.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 45 days from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) thereafter shall carry penal interest @ 15% p.a., from the date of default, and interest @ 12% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.
5. However, it is made clear that, if the complainants have availed loan facility from any banking or financial institution, for making payment of installments towards the unit in this complaint, it will have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainants).

 

In Consumer complaint bearing No.159 of 2018, opposite party no.1 is directed as under: -

1. To refund the entire amount, actually paid by the complainant from his own sources/pocket, at the time of booking and thereafter also, towards part price of unit, alongwith interest @12% p.a., from the respective dates  of  deposits onwards.
2. To refund the amount to the complainant, if any pending, which had been paid by him to opposite party no.2, towards equal monthly installments, if any, on the loan amount, as it was the liability of opposite party no.1 only, under subvention scheme, as explained above. 
3. To repay the entire loan amount to opposite party no.2, released by it, in favour of opposite party no.1, in respect of the unit, in question, alongwith pre-EMI installments, if any due, till date. It is also made clear that till the time, the entire loan amount is not repaid to opposite party no.2, opposite party no.1 shall be bound to pay the equal monthly installments/Pre-EMI interest to opposite party no.2, till realization.
4. To pay compensation, in the sum of Rs.75,000/- for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
5. To pay cost of litigation, to the tune of Rs.22,000/- to the complainant.
6. The payment of awarded amounts mentioned at sr.nos.(i), [(ii) (if any)], (iv) and (v) shall be made by opposite party no.1 to the complainant, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) and [(ii) (if any)] thereafter shall carry penal interest @14% p.a., instead of @12%, from the date of default and interest @12 % p.a., on the amounts mentioned at sr.nos. (iv) and (v), from the date of filing of this complaint, till realization, besides compliance of other directions given.
7. Complaint against opposite party no.2 is dismissed with no order as to costs, subject to directions aforesaid.

In Consumer complaint bearing No.244 of 2018, opposite parties no.1 and 2 jointly and severally are directed as under:

1.   To refund the entire amount, actually paid by the complainant from his own sources/pocket, at the time of booking and thereafter also, towards part price of unit, alongwith interest @12% p.a., from the respective dates of deposits onwards.
2.   To refund the amount to the complainant, if any pending, which had been paid by him to opposite party no.3, towards equal monthly installments, if any, on the loan amount, as it was the liability of parties no.1 and 2 only, under subvention scheme, as explained above. 
3.   To repay the entire loan amount to opposite party no.3, released by it, in favour of opposite parties no.1 and 2, in respect of the unit, in question, alongwith pre-EMI installments, if any due, till date. It is also made clear that till the time, the entire loan amount is not repaid to opposite party no.3, opposite parties no.1 and 2 shall be bound to pay the equal monthly installments/Pre-EMI interest to opposite party no.3, till realization.
4.   To pay compensation, in the sum of Rs.75,000/- for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
5.   To pay cost of litigation, to the tune of Rs.22,000/- to the complainant.
6.   The payment of awarded amounts mentioned at sr.nos.(i), [(ii) (if any)], (iv) and (v) shall be made by opposite parties no.1 and 2 to the complainant, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) and [(ii) (if any)] thereafter shall carry penal interest @14% p.a., instead of @12%, from the date of default and interest @12 % p.a., on the amounts mentioned at sr.nos. (iv) and (v), from the date of filing of this complaint, till realization, besides compliance of other directions given.
7.   Complaint against opposite party no.3 is dismissed with no order as to costs, subject to directions aforesaid.

In Consumer complaint bearing No.295 of 2018, opposite party no.1 is directed as under: -

1. To refund the entire amount, actually paid by the complainants from their own sources/pocket, at the time of booking and thereafter also, towards part price of unit, alongwith interest @12% p.a., from the respective  dates  of  deposits onwards.
2. To refund the amount to the complainants, if any pending, which had been paid by them to opposite party no.2, towards equal monthly installments, if any, on the loan amount, as it was the liability of opposite party no.1 only, under subvention scheme, as explained above. 
3. To repay the entire loan amount to opposite party no.2, released by it, in favour of opposite party no.1, in respect of the unit, in question, alongwith pre-EMI installments, if any due, till date. It is also made clear that till the time, the entire loan amount is not repaid to opposite party no.2, opposite party no.1 shall be bound to pay the equal monthly installments/Pre-EMI interest to opposite party no.2, till realization.
4. To pay compensation, in the sum of Rs.75,000/- for causing mental agony and physical harassment, to the complainants, as also escalation in prices.
5. To pay cost of litigation, to the tune of Rs.22,000/- to the complainants.
6. The payment of awarded amounts mentioned at sr.nos.(i), [(ii) (if any)], (iv) and (v) shall be made by opposite party no.1 to the complainants, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) and [(ii) (if any)] thereafter shall carry penal interest @14% p.a., instead of @12%, from the date of default and interest @12 % p.a., on the amounts mentioned at sr.nos. (iv) and (v), from the date of filing of this complaint, till realization, besides compliance of other directions given.
7. Complaint against opposite party no.2 is dismissed with no order as to costs, subject to directions aforesaid.

17.         Certified Copies of this order be sent to the parties, free of charge and one copy each, be placed in connected files, referred to above.
18.         The files be consigned to Record Room, after completion.

Pronounced.

08.02.2019

Sd/-

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

 

(PADMA PANDEY)

        MEMBER

 

 

Sd/-

 

[RAJESH K ARYA]

 MEMBER

Rg.